Parties: Ahmed Zarour (Applicant)
Commissioner of Police (Respondent)
Representation: Solicitors:
Applicant (Self-represented)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2022/00016132
Publication restriction: Paragraphs 31 and 47: not for publication pursuant to s 64(c) and 64(d) of the Civil and Administrative Tribunal Act 2013
[2]
REASONS FOR DECISION
Ahmed Zarour (the Applicant) was the subject of an Apprehended Violence Order (AVO) for a period of 12 months between 1 December 2010 and 30 November 2011. As a result of that AVO, pursuant to s 11(5)(c) of the Firearms Act 1996 (the Act) he was disqualified from holding a firearms licence for a period of 10 years.
On 3 March 2021 the Applicant lodged an application for a category H firearms licence. In the application he answered No to the following questions:
At any time within the past 10 years have you been subject to an Apprehended Violence order (AVO). This does not include an AVO that has been revoked;
Have you ever attempted suicide or self harm?
The application was refused by the Commissioner of Police (the Respondent) on 18 March 2021 on the basis that his answers to those questions were false, and he was still within the 10-year disqualification period. The Applicant sought internal review. On 26 May 2021 the internal review affirmed the decision, finding that the 10-year disqualification period meant that the Commissioner had no discretion to issue a firearms licence to the Applicant.
On 14 April 2021, the Applicant lodged an appeal with the Tribunal. On 1 June 2021 the Tribunal remitted the matter for reconsideration to the Respondent. On 7 June 2021, the Respondent issued a reconsideration determination, confirming the decision of 26 May 2021 on the basis that the Applicant had been the subject of an AVO within the period of 10 years pursuant to s 11(5)(c) of the Act.
On 2 December 2021, two days after the 10-year disqualification period expired, the applicant again applied to the Respondent for a Category H licence. On 20 December 2021, the Respondent refused the licence application on the basis of the Applicant's documented history of domestic incidents, concerns arising in 2010 regarding his mental health, and an incident involving him which occurred at the Parramatta Mosque in October 2016.
On 26 December 2021, the Applicant lodged an application for an internal review of the Respondent's decision of 20 December 2021. The Respondent did not conduct an internal review within 21 days and so pursuant to s 53(9)(b) of the Administrative Decisions Review Act 1997 (ADR Act) it was taken to be finalised on or about 10 January 2022. On 17 January 2022, the Applicant lodged an application for review to the Tribunal, which is the subject of these proceedings.
The proceedings were subject to a preliminary hearing on 13 April 2022 before Senior Member Montgomery in relation to the Respondent's application for confidentiality orders under the Civil and Administrative Tribunal Act 2013 (CAT Act). Those orders were granted in the following terms:
(1) Pursuant to section 49 of the Civil and Administrative Tribunal Act 2013, the hearing of this application is to be conducted in the absence of the Applicant in the substantive proceedings, the legal representative for the Applicant in the substantive proceedings, and the public ("Private Hearing");
(2) Pursuant to section 59 of the Administrative Decisions Review Act 1997, the Respondent ("the Commissioner") is not required to lodge copies of the documents ("the Confidential Documents") described in the Confidential Statement provided to the Tribunal by the Commissioner ("the Confidential Statement");
(3) Pursuant to section 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of (a) any evidence given during the Private Hearing, (b) the Confidential Documents and the Confidential Statement and (c) the matters contained in the Confidential Documents and the Confidential Statement is prohibited;
(4) Pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of (a) any evidence given during the Private Hearing, (b) the Confidential Documents and the Confidential Statement and (c) the matters contained in the Confidential Documents and the Confidential Statement is restricted to the Commissioner, the legal representatives for the Commissioner and the Tribunal; and
(4) Pursuant to sections 64(1)(b) and (c) of the Civil and Administrative Tribunal Act 2013, the publication and reporting of the hearing of this application, including any evidence given during the hearing, is prohibited.
These confidentiality orders were continued during the hearing of the substantive proceedings before me on 3 May 2022 with respect to a confidential hearing that was held in the absence of the Applicant, and confidentiality orders made over the transcript of that confidential hearing and the evidence and submissions referred to and relied upon by the Respondent in that confidential hearing.
In his application for review the Applicant stated that the grounds for review of the decision were:
Refused based on information that was proven otherwise on last hearing. AVO expired after 10 year/ this was used to dismiss. Mental health documents proves stability. No criminal history or convictions.
Attached to the application was a Mental Health Triage form from Cumberland Hospital admissions dated 12 February 2010. The Applicant also provided the Tribunal with a written statement made by him, addressing the mental health concerns raised by the Respondent regarding incidents on 30 January 2010 and 12 February 2010, and the incident at the Parramatta Mosque on 16 October 2016.
The Applicant gave oral evidence at hearing and was cross examined. Because of the lack of written evidence supporting the Applicant's explanations and claims at hearing, at the end of the oral hearing I made orders for the parties to file and serve written closing submissions and to notify the Tribunal if a further hearing date was required as a result of any additional evidence sought to be relied on by the Applicant. The Respondent filed closing written submissions on 11 May 2022 but there was nothing further provided by the Applicant. On 6 June 2022 I made a final order for any further submissions by the Applicant to be filed by 10 June 2022, but none were received. This decision was reserved thereafter on 10 June 2022.
[3]
Legal Principles
The Act establishes a legislative framework to regulate the possession, use, acquisition and supply of firearms. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal to hear and determine the Application. Section 63 of the ADR Act requires the Tribunal to make the correct and preferable decision on the basis of the evidence available at the time, together with any additional or later material: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77.
Section 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety:
(1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety:
(i) by imposing strict controls on the possession and use of firearms, and
(ii) by promoting the safe and responsible storage and use of firearms, and
…
(2) The objects of this Act are as follows:
…
(b) to establish an integrated licensing and registration scheme for all firearms,
(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,
(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,
(e) to ensure that firearms are stored and conveyed in a safe and secure manner,
…
The power to grant an application for a firearms licence under s 11 of the Act is "tightly constrained" and in particular, significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant: Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159 at [1]. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 at [117].
In these proceedings the Respondent relied on ss 11(4) and 11(7) of the Act to refuse the Applicant's firearms licence application. Section 11(4) of the Act provides that (emphasis added):
Without limiting the generality of subsection (3)(a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of -
(a) the applicant's way of living or domestic circumstances, or
(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or
(c) the applicant's intemperate habits or being of unsound mind.
The term "reasonable cause to believe" in this context was considered by the Tribunal in the matter of LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at paragraphs [41]-[43]. There the Tribunal referred to the decision of Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013 in which Emmett J stated that the words 'reasonable cause to believe' are
…not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief.
Public safety, including the Applicant's safety, is the primary focus of the public interest issue and of the Act generally: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134.
Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. The expression "public interest" is not defined in the Act, but has been discussed in a number of Tribunal decisions. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that:
"The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
The public interest encompasses broader considerations beyond public safety. It is an inherently broad concept and is designed to give the broader interests of the community priority over private interests. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the 'public interest' is:
'… an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.'
In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, it was stated at 681:
The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
In Director of Public Prosecutions v Smith (1991) 1 VR 63 the Court observed:
The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act. A discretion to make a decision 'in the public interest' is not confined except by the scope and purposes of the legislation itself: DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15], referring to O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson, Gaudron JJ. The discretion must be exercised to promote the objects of the firearms legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23].
As stated by the Administrative Decisions Tribunal in Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276:
'The Applicant's individual interest in retaining his Category AB Firearms Licence must be subordinate to the public interest in ensuring public safety.'
In an often-quoted passage, Hennessy DP in Ward v Commissioner of Police [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130].
Since then, Hennessy DP cautioned against applying that language in a mechanistic way, noting in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that:
"The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests".
Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66], Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32].
In determining whether the issue of a licence is contrary to the public interest, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] to [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30].
Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25]. The public interest requires that all licensees be aware of and comply with the legislative requirements: Vella v Commissioner of Police [2003] NSWADT 91 at [41].
Where there has been or is the possibility of a threat to public safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Aubrey v Commissioner of Police [2005] NSWADT 266 at [21]. The licensing regime is also concerned with "making decisions that are consistent with a need to reduce any risks to a minimum": Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36].
[4]
The Evidence
The Respondent relied on evidence of the following incidents contained in COPS event reports:
1. In November 2008 the Applicant was arrested for drug possession and given a cannabis caution;
2. In October 2009 the Applicant was stopped by Police and found with a 'cone piece", and admitted to smoking 3-5g of cannabis daily;
3. In November and December 2009 the Applicant was the subject of reports to the Police of domestic incidents including verbal arguments with his then girlfriend;
4. On 30 January 2010, the Police arrested the Applicant and took him to the Police station following a report made to the Police that the informant could hear a male screaming at a female. The informant believed that the male (that is the Applicant) was assaulting the female and that it seemed like the matter was getting out of hand. The Applicant's then girlfriend told the Police that during the argument the Applicant had retrieved a pair of scissors and was holding them in his right hand waving them around. At one stage, she went to the kitchen where the Applicant grabbed her right leg and pulled her to the ground and dragged her around the kitchen. She refused to provide Police with a written statement and the Applicant provided the Police with a different version of events.
5. Whilst in custody, the Applicant was asked the following question "Have you tried to take your life?", to which he answered in the affirmative, commenting that he attempted to cut his arm around 2 years prior.
6. On 10 February 2010, the Applicant's mother contacted Police reporting that her son needed help and he was talking about hanging himself.
7. On 12 February 2010, the Applicant's then girlfriend contacted the Police to report that the Applicant was threatening to kill himself, that he attempted to hang himself 2 days previously, and had previously cut his wrists in December 2009. The Applicant was taken to Cumberland Hospital and was later released into the custody of his mother.
8. On 7 March 2010, the Applicant and his then girlfriend had an argument where the Police were called.
9. On 28 March 2010, the Applicant threatened self-harm to his then girlfriend if she left him. She informed the Police and told them that the Applicant had attempted self-harm before.
10. On 15 August 2010, the Police were called when the Applicant and his father had an argument regarding the Applicant's failure to adhere to religious customs associated with Ramadan.
11. On 19 November 2010, the Applicant and his mother had an argument about batteries for the Applicant's games console. The Applicant's conduct in yelling at his mother and punching the toilet door caused his mother to fear for her safety and the safety of her children. The Police were called.
12. On 30 November 2010, the Applicant was the subject of an AVO for a period of 12 months, between 1 December 2010 and 30 November 2011.
13. On 11 June 2014, the Police were called to an argument involving the Applicant and his mother.
14. On 14 May 2015, the Police attended a domestic argument between the Applicant and his then girlfriend (a different individual to the girlfriend from 2010).
15. On 31 July 2015, the Police attended an address where the Applicant was residing with his then girlfriend, regarding an argument between the Applicant and his then girlfriend.
16. On 29 November 2015, the Police attended a call about the Applicant and his then girlfriend/wife yelling at the Applicant, with the Applicant being concerned that she would damage his property.
17. On 17 June 2016, the Applicant's wife asked a third party to call the Police, as her partner, the Applicant, had been violent to her. According to the report, the Applicant's wife was hiding behind a vehicle in the front yard when Police were called. When the Police arrived, the Applicant's wife told the Police that there had been an argument and that she was outside to let the Applicant cool down. The Applicant's wife did not report an assault to the Police.
18. On 13 October 2016, the Applicant was heard delivering speeches to the attendees at the Parramatta Mosque, which was contrary to the policies that were in place at the mosque. The next day, a notice was put up at the mosque, stating:
"ATTENTION NO ONE IS ALLOWED TO DELIVER ANY TALKS WITHOUT PERMISSION FROM PARRAMATTA MOSQUE MANAGEMENT"
1. On 15 October 2016, the Applicant attended the mosque and saw that the sign had been placed within the mosque. The Applicant on seeing the notice and believing that the signs were placed there to target him to stop him delivering speeches, approached a member of the mosque management. The Applicant argued with the member of the mosque management and became enraged. The Applicant on seeing a worshipper who was seated nearby and was looking at the Applicant told this person "Why are you laughing for, do you want me to show you my power?". The Applicant approached the worshipper in an aggressive manner and other attendees intervened to prevent the incident escalating. Police were called and attended. The member of the mosque management did not want to take any action, preferring to deal with the matter internally.
2. The Applicant was spoken to and provided the Police with a different version alleging that he had spoken to someone who was speaking loudly and told the other person that he wasn't supposed to talk inside the mosque as it disturbed other people who were in the Mosque praying. According to the Applicant, a heated argument took place between the Applicant and the other person as a result of the ensuing conversation.
3. On 1 December 2016, the Police were called to a verbal argument regarding the living arrangements between the Applicant and his wife, with his wife being locked outside by the Applicant.
CONFIDENTIAL: NOT FOR PUBLICATION
The Applicant gave evidence seeking to explain the circumstances of the incidents relied on by the Respondent. He claimed:
1. In relation to the incident of 30 January 2010, he was in a toxic relationship with his then girlfriend and she called the police to falsely accuse him, then recanted the next day. Both he and his girlfriend were under the influence of drugs at the time. He remembers being taken to the Police station but was not charged. He had not tried to kill himself but was angry and distraught, and probably did tell the police that he had tried to self harm or commit suicide, but it wasn't true.
2. In relation to the incident of 11 February 2010 he had an argument with his mother, and his mother rang police because his girlfriend had told her that he had tried to kill himself. He never told his mother that he tried to kill himself and it wasn't true.
3. In relation to allegations that he had mental health issues, these were concocted by his then girlfriend. He relied on the Cumberland Hospital mental health triage forms dated 12 February 2010 which he provided to the Tribunal to prove that he had no mental illness and had not threatened suicide. He denied cutting himself or trying to hang himself. He claimed that his girlfriend had made these allegations in the context of a toxic, abusive relationship in the context of him threatening to leave her.
4. In relation to the incident reported of 17 June 2016, he vaguely remembered arguing with his wife. His younger brother had had a seizure that day which resulted in some brain damage and his wife had "made a smirk comment", to which he got angry and yelled. She left the house until he cooled off. Police came and left, he didn't remember talking to them at that time. "It was nothing".
5. In relation to the October 2016 incident at the Parramatta Mosque, he started going to the mosque around that time and was a regular attendee. He said that he wasn't the one giving speeches or preaching, but was standing with someone who was making speeches, and collecting money for homeless people with his father. The mosque didn't like people collecting money. He knew the posters were directed at him. Someone got into his face and accused him of making speeches. Police called him and told him not to come back, so he never did. He denied making any threats and claims people intervened because he was arguing with the mosque staff, claiming that the mosque had "kicked out lots of people", "the same guy I was arguing with was filmed kicking police" and "it was a hard time for that mosque - there was lots of media attention".
6. In relation to the AVO he claimed that he didn't know what it was for and didn't realise the 10-year disqualification period hadn't expired when he made the first application for a firearms licence in March 2021. So he waited and then reapplied on 1 December 2011 after the disqualification period had expired. He had answered the question about being subject to a disqualification period without knowing the exact date that his disqualification expired and hadn't intentionally given false information. He just didn't check the exact month that he was eligible. He knew that if he answered "Yes" to those questions that his licence application would "most probably" be rejected.
The Applicant explained that he was a probationary member at Blacktown (Pistol) Club. His personal trainer and friends went there. "I have to do shooting every week with a safety instructor". He started target shooting at the Blacktown Club in about January 2021, paid for the relevant courses and was issued with a certificate. He then applied for a firearms licence, following which he could apply for full membership to the Club. He said that "while I'm waiting, I can do target shooting" but "I can't shoot until after the NCAT hearing". He had started at the Club last year but his ability to target shoot there was put to a stop, due to the Respondent's refusal of his licence application.
The Applicant stated that he had no conviction in the past ten years and that the issues the Respondent was concerned with occurred twelve to fourteen years ago in the context of a toxic relationship in which both he and his then girlfriend were "under the influence". He was now a happily married 32-year-old man with a wife, a son and a daughter, with a respectable business having over 100 reviews. He said that he was not and had never been mentally unstable and had been falsely accused by his ex-girlfriend. He now had a good reputation and did youth work to help kids get off drugs. In relation to what occurred twelve to fifteen years ago, he "didn't regret it because it made me who I am today". He asked the Tribunal to look at the previous 10 years demonstrating his lack of violence or harm.
[5]
Consideration
The Respondent's COPS event reports about the Applicant and his various incidents of domestic and other aggression were in stark contrast to the Applicant's evidence diminishing the significance and severity of those events. His evidence was contradictory and self-serving, and his statements of reformation and character were entirely unsupported by objective documentary evidence or any statements by third parties. As discussed above, the Tribunal allowed the Applicant additional time after the oral hearing to provide any supporting documentation for his claims, including specifically in relation to his character. None was received, and there were no character references provided for the Applicant.
The Cumberland Hospital Mental Health Triage forms were relied on entirely by the Applicant to support his claim that he had not, at any stage, suffered from any mental health issues or had threatened self-harm. Review of that record shows the Applicant's admission for threats of self-harm, pursuant to s 22 of the Mental Health Act 2007. Under the heading "Possible Risks" the "Significant past history of risk - Suicide" is marked "Unknown"; "Recent behaviour suggesting risk - Suicide" is marked "Unknown" and "Concern from others about risk - Suicide" is marked "Yes". The category of "Person's level of risk appears to be highly changeable" is marked "Yes". In summary, the report observed:
20y old male teary + upset, brought in by Police on a section 22 after argument with girlfriend. Girlfriend called Police stating that he was going to harm himself. Ahmed denied that he was going to harm himself stated he is trying to leave the relationship. He denies any illicit drug use. States that he had used in the past. Denies hearing voices. States that when Police put handcuffs on that he hit his on the wall.
I don't agree with the Applicant that this record demonstrates that he never made threats of self-harm or had made previous suicide attempts. The record clearly states that these factors were "unknown", and the assessment determined that he was a "low" risk of self-harm or violence at that time. It does not provide sufficient support for the Applicant's claims that he had never actually threatened self-harm or attempted suicide.
In the absence of corroborative evidence I also do not accept the Applicant's explanations that his ex-girlfriend entirely concocted stories of him attempting suicide and threatening self-harm, particularly in circumstances where there is a history of domestic aggression and he admitted to self-harm and previous suicide attempts when questioned in custody by Police. The evidence before the Tribunal is therefore that the Applicant likely did attempt suicide in around 2008, and threatened suicide to his former partner in serious enough circumstances that the Police referred him for mental health assessment on one occasion and his mother contacted police with that concern on another occasion. There was no evidence provided by the Applicant from an expert to state that he is not a risk to himself or public safety, despite providing him with ample opportunity to obtain that evidence.
In this matter the Police have attended to a number of reports of domestic disharmony and aggression over a period of several years involving the Applicant in circumstances where the Applicant's parents, partners and members of the public have contacted the Police, concerned about the aggressive nature of the arguments and the potential risk to public safety. Regardless of who was at fault on each occasion, the incidents demonstrate that the Applicant's domestic circumstances involved aggressive disputes with the people closest to him. I agree with the Respondent's submission that this raises concerns about the domestic circumstances of the Applicant at the relevant times.
I do not accept the Applicant's submission or implication that because his partners refused to make a statement or retracted their allegations against him after an incident that these incidents did not occur as described by the Police. As discussed in Manning v Commissioner of Police [2020] NSWCATAD 111 at [51], victims of domestic violence do not always report incidents or pursue proceedings because of fear of repercussions. The Applicant's history of arguments and aggression with domestic partners is not limited to a single individual, which could perhaps provide some support, in different circumstances, for a finding that the aggression was mutual and in the context of a mutually toxic relationship. The evidence demonstrates that the Applicant's history of verbal abuse and aggression extended over the years to his parents and more than one partner, which supports the Tribunal finding that the Applicant does have a history of verbal aggression, including the making of threats. There is no evidence, other than the Applicant's unsupported assertions, that his character or reactions in this respect have changed over the past ten years.
In Grenfell v Commissioner of Police [2021] NSWCATAD 124 at [104], the Tribunal concluded that it was not in the public interest for the Applicant to hold a firearms licence in circumstances where the Applicant was subject to a provisional AVO that was withdrawn. It is immaterial that those matters did not give rise to any proven charges: see Hariri v Commissioner of Police [2022] NSWCATAD 5 and Madziala v Commissioner of Police, NSW Police Force [2021] NSWCATAD 269.
The incident at the Parramatta Mosque in October 2016 as reported to the Police further demonstrates the Applicant's inability to deal with conflict without resorting to aggression. The Applicant's explanation for what occurred there was contradictory yet acknowledged, at the very least, a verbal altercation which resulted in him being banned from the Mosque. It demonstrates that the Applicant's character, in that respect, had not changed significantly from the aggression displayed by him in the incidents which occurred more than 10 years ago.
I accept that the Applicant's false statements in his licence applications were inadvertent, at least in relation to the question of whether he had been disqualified from holding a licence in the previous 10 years, because the Applicant was unaware of the exact date on which the 10-year disqualification expired. However, the Applicant bears responsibility for making sure that his responses to those questions are accurate. He admitted under cross examination that he didn't check which month the disqualification period expired. He should have done so before answering that question on the licence application form and before answering that question when he applied to Blacktown Pistol Club for a probationary licence.
In his evidence, the Applicant stated that he wished to "continue" pistol shooting, repeating the comments that he made in seeking an internal review on 18 March 2021, where he told the Firearms Registry that he enjoyed target shooting. The internal review dated 7 June 2021 acknowledged that the Applicant had undertaken a Pistol safe Handling Course at the Blacktown Pistol Club on 6 March 2021. However, the Applicant was not actually eligible for the exemption under cl 129 of the Firearms Regulations 2017 (the Regulations) which would allow him to shoot on the pistol club range or undertake a firearms safety training course at that time, because his 10-year disqualification period from the end of the AVO had not expired. Each person who shoots under the exemption must answer 'No' to every question before the person is allowed to shoot on the range or undertake a firearms safety-training course. One of the questions is:
(a) Have you, in New South Wales or elsewhere -
…
(v) within the last 10 years, been the subject of a family law or domestic violence order or an apprehended violence order (other than an order that was revoked)?
If the Applicant had answered the question truthfully, he would not have been able to undertake the safety training course and would not have been allowed to undertake target or pistol shooting at Blacktown Pistol Club.
In any event, the Applicant's personal interest in obtaining a firearms licence cannot outweigh the public interest in maintaining public safety and confidence in the regulatory system for firearms possession and licencing. As discussed above at [14], the power to grant an application for a firearms licence under s 11 of the Act is "tightly constrained" and in particular, significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. The regulatory scheme requires strict compliance precisely because misuse of firearms can result in catastrophic consequences. Although the Applicant's 10-year disqualification period has now expired, the evidence demonstrates that his history of aggression and domestic conflict poses a risk to public safety. The Tribunal is concerned by these risks, which includes verbal aggression in both public and private settings and threats of self-harm in the context of domestic conflict. There is no evidence, other than the Applicant's assertions (which are not accepted), that the Applicant's character or conduct has changed in the intervening 10-year period so as to diminish or remove those threats to public safety.
CONFIDENTIAL: NOT FOR PUBLICATION.
Even without the evidence provided by the Respondent on a confidential basis, the risk to public safety posed by the Applicant demonstrates to the Tribunal that it is not in the public interest for the Applicant's licence application to be granted. Additionally, the false answers he provided to Blacktown Pistol Club and the Respondent in relation to his disqualification period provide the Tribunal with no confidence that he would accept personal responsibility for ensuring knowledge of and compliance with his obligations under the Act and Regulations.
The correct and preferable decision is therefore for the Tribunal to affirm the Respondent's decision to refuse the Applicant's firearms licence application.
[6]
Orders
1. The Respondent's decision to refuse the Applicant's firearms licence application is affirmed.
2. The confidentiality orders made 13 April 2022 and 3 May 2022 are continued.
[7]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
[8]
Amendments
11 August 2022 - 'YES' removed from Publication Restriction
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 11 August 2022